The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (D.B.) No. 98 of 1994 (R) --------- (Against the judgment of conviction and order of sentence dated 26.04.1994 passed by the Additional Judicial Commissioner/Addl. Sessions Judge, Lohardaga in S.T.No. 642 of 1989/03 of 1991 arising out of Kuru P.S. Case No. 58 of 1989). --------- Soma Oraon son of Late Ganga Oraon, resident of Kolsimri Roneyatoli, P.S. Kuru, District-Lohardaga … …Appellant … -Versus- … The State of Bihar --------- … …Respondents P R E S E N T HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE SUBHASH CHAND For the Appellant: For the State: Ms. Aparajita Bhardwaj, Amicus Curiae. Ms. Vandana Bharti, A.P.P. C.A.V. on 11.01.2023 Per Subhash Chand, J. --------- --------- Pronounced on 17. 01.2023 The instant Criminal Appeal is directed against the judgment of conviction and order of sentence dated 26.04.1994 passed by the Additional Judicial Commissioner, Lohardaga in S.T. No. 642 of 1989/03 of 1991 whereby and whereunder the appellant has been convicted and sentenced to undergo rigorous imprisonment for life for the offence committed under Section 302 of the Indian Penal Code. 2. The brief facts of the prosecution case leading to this appeal are that the informant Shuku Oraon had given written information on 04.08.1989 to the Police Station concerned with these allegations that on 04.08.1989 at 2 p.m. his son Dashrath Oraon had gone to his agricultural field Pelapeli Don to repair “Aal” of his agricultural field. 3. Daughter-in-law of the informant namely Baria Oraon was also cutting grass in the nearby field. The informant had also gone to respond the call of nature towards his field. He heard “hulla” of his daughter-in-law Baria Oraon and rushed towards the field and saw accused Soma Oraon fleeing away armed with “Kudal” towards east. The informant further saw his son Dashrath Oraon lying in the field whose neck was cut and was dead. Baria Oraon had told him that there was dispute between 2 Dashrath Oraon and Soma Oraon on the issue of cutting and repairing “Aal” in the agricultural field. She also told that accused Soma Oraon had pushed Dashrath Oraon whereby he also fell down and assaulted him with “Kudal” and ultimately fled away. 4. It is also stated that on hearing hue and cry Mahadeo Oraon and others who were working in the nearby the field also came there. Mini Orain, Sabitri Kumari, Bande Oraon and Mangra Oraon also reached at the place of occurrence where he and Baria Oraon also told them in regard to occurrence. He also informed to the Chowkidar Jatru Oraon and went along with him to the police station on the same day and he reported the matter and the F.I.R. was lodged against Soma Oraon under Section 302 of the Indian Penal Code with the police station concerned on case crime No. 58 of 1989. Investigating Officer after having concluded the investigation, filed charge-sheet against accused Soma Oraon for the offence under Section 302 of the I.P.C. to the court of C.J.M. concerned who took cognizance on the same and committed the case to the court of sessions for the trial. The court of sessions transferred the same to the Additional Sessions Judge, Lohardaga. 5.
Legal Reasoning
The Trial Court framed charge against the accused for the offence under Section 302 of the Indian Penal Code, who denied the charge and claimed to face the trial. 6. On behalf of the prosecution to prove charge against the accused, examined 15 witnesses in oral evidence. P.W. 1 Biren Oraon, P.W. 2 Baria Oraon, P.W.3 Suku Oraon, P.W.4 Bande Oraon, P.W. 5 Dr. Kant Kumar Kujur, P.W.6 Mahadeo Oraon, P.W.7 Sabitri Oraon, P.W. 8 Mini Oraon, P.W.9 Lothe Oraon, P.S. 10 Dasai Oraon, P.W. 11 Mangra Oraon, P.W. 12 Shivaji Prasad Singh, P.W. 13 Shivaji Prasad Singh, P.W. 14 Sheo Kumar Singh, P.W. 15 Arun Kumar. In documentary evidence adduced the post- mortem report (Ext.1), F.I.R. (Ext.2), Inquest report (Ext. 3), Seizure list (Ext. 4), Statement of Mahadeo Oraon under Section 164 Cr.P.C. (Ext. 5) and statement of Biren Oraon under Section 164 Cr.P.C. (Ext. 6). 7. Statement of accused under Section 281 Cr.P.C. was recorded in which the accused denied the incriminating circumstance against him and stated himself to be 3 innocent and stated that he had been falsely implicated in this case on account of animosity. The learned Trial Court after hearing the learned Counsel for the parties held the appellant/accused Soma Oraon guilty for the offence under Section 302 of the Indian Penal Code and convicted him and sentenced with rigorous imprisonment for life. 8. Aggrieved by the impugned judgment and sentence, this appeal is preferred on behalf of convict/Soma Oraon on the ground that witnesses examined by the prosecution have given contradictory statement on the material points. From the testimony of the witnesses who are stated to be eye-witness, their presence at the place of occurrence cannot be believed. Recovery of the weapon used in commission of the murder is not proved to have been used as the same was not sent to the F.S.L. to call the report of serologist. The learned Trial Court has failed to appreciate the evidence on record in proper way. The ocular evidence is altogether at variance with the medical evidence as such the same cannot be relied upon but the Trial Court on placing reliance upon the same, has passed a judgment and order of conviction and sentence of the appellant-accused. Witnesses produced on behalf of prosecution cannot be said to be eye-witness as they had not seen the occurrence rather had seen the accused fleeing away with “Kudal” after committing the alleged offence. As per medical evidence, all the injuries are shown to be incised wound while the infliction of “Kudal” would cause lacerated wound and also fracture of the bone. Therefore, the ocular evidence is at variance with medical evidence as such the impugned judgment and order of conviction bears infirmities and prayed to set aside the impugned judgment of conviction and sentence passed against the appellant. 9. To decide the legality and propriety of the impugned judgment of conviction and sentence by the learned Trial Court, the testimony of the prosecution witness produced on behalf of the prosecution and appraisal of the same is required and same is given here-in-below: 10. In oral evidence on behalf of the prosecution examined P.W. 1 Biren Oraon. This witness in her examination-in-chief says that at the afternoon on Friday 4 in the month of past Srawan she was working at her agricultural field; there was altercation between accused Soma Oraon and deceased Dasrath Oraon. Thereafter Soma Oraon had assaulted Dasrath Oraon with spade (Kudal) and fled away. This witness also identified Soma Oraon standing in the dock. In course of cross- examination, this witness says that the deceased Dasrath Oraon was the cousin of accused Soma Oraon. The altercation between them was going on, on what issue she could not hear. She was picking up grass from her agricultural field. Her agricultural field was at the distance of 3 kiyaris from the agricultural field wherein occurrence took place. After the occurrence, she reached her house and did not reach to the agricultural field wherein the occurrence took place. She did not raise alarm. Nearby that agricultural field so many persons were working in the agricultural field. All were planting paddy in their field. 11. This witness was also re-examined and in her re-examination-in-chief she stated that the Magistrate had recorded her statement and same was read over and explained to her and she put thumb impression thereon. In cross-examination this witness says that her statement was read over to her thereafter she put her thumb impression. 12. P.W.2 Baria Oraon in her examination-in-chief says that the occurrence was of 7 to 8 months ago on the day of Friday afternoon. Her husband Dasrath Oraon was repairing “Aal” in the agricultural field. She was also picking up grass from the Maize field. Mahadeo Oraon told her that her husband and Soma Oraon were fighting. She went to her husband to see the occurrence. Soma Oraon was assaulting with spade to her husband and also fled away from there after having assaulted her husband. She had seen the occurrence from her own eyes. Soma Oraon also pushed her husband and assaulted with spade. She also reached nearby her husband who was being assaulted by Soma Oraon. Soma Oraon fled away along with spade. She also told in regard to occurrence to her father-in-law and also raised alarm. So many persons attracted there and all were told by her in regard to occurrence. She 5 recognized Soma Oraon, who was present in the dock. Her husband Dashrath Oraon succumbed to injuries. 13. In cross-examination, this witness says that she was picking up grass from her agricultural field. After having seen the occurrence she went to her house on the way Lotha Maitha met. The agricultural field of Dasrath was away ‰ kosh from the maize field. When she reached there, no one witness was there. The accused Soma Oraon fled away along with “Kudal” before she reached at the agricultural field wherein the occurrence took place. She had seen the accused fleeing away from the nearby agricultural field. She does not know yard, k.m. gauze etc. (stated suo motu). Dispute between Dasrath and Soma Oraon was on making “Aal” in the agricultural field. 14. P.W.3 Suku Oraon is the informant. This witness in his examination-in- chief says the occurrence is of 7 months ago of Friday. His son Dasrath Oraon was in the agricultural field to repair “Aal” after 2 O’clock of day time. His younger daughter- in-law Baria Oraon was plucking grass in the agricultural field of maize. He had also gone to respond the call of nature towards agricultural field. He heard alarm raised by his daughter-in-law. He reached there and saw accused Soma Oraon fleeing away towards east along with spade. He also reached at the agricultural field wherein his son Dasrath Oraon was injured and dead. His neck was cut. His daughter-in-law told in regard to occurrence to him that it was Soma Oraon who had assaulted Dasrath with spade resulting his death. He also reached to the police station wherein his fardbayan was recorded. He also put his thumb impression on the same and recognized his thumb impression. He also recognized Soma Oraon present in the dock. 15. In cross-examination, this witness says the accused Soma Oraon is also his nephew. Dispute was going on of making “Aal” in the agricultural field between Soma Oraon and Dashrath. Soma Oraon had fled away along with “Kudal” after committing the occurrence and did not come back at the very agricultural field. He had seen him fleeing away from his agricultural field. 6 16. P.W.4 Bande Oraon is the hearsay witness and stated that he came to know in regard to the occurrence while he was going towards the agricultural field from his house. Dead body slit with neck was seen by him in agricultural field. 17. P.W. 5 Dr. Kant Kumar Kujur conducted post-mortem on the body of deceased-Dasrath Oraon and following ante-mortem injuries were shown in the post- mortem report: i. Muddy on the face and all the limbs. ii. Incised wound left side of the frontal bone region 1” x ½” upto the bone just above about 1 ½“ left ear. iii. Incised wound 1 ½” x ½” upto bone iv. Incised wound and perforating injury which start below the right ear and extent upto middle of the back of the neck 6” x 1 ½”x upto the vertebral cavical. v. Incised Injury 5”x 1 ½” x upto the vertebral cavical vi. Incised injury 4”x1”x upto the vertebrae. vii. Abrasion on the left chest 1”x ½”. All the injuries were caused by hard and blunt substance may be of “Kudal”. In his opinion death was due to shock and haemorrhage and injury to the vital organs. Time elapsed from the death 24 hours from the time of conducting post-mortem. 18. P.W.6 Mahadeo Oraon in his examination-in-chief says that the occurrence was of Srawan Mas on Friday afternoon of two years ago from the date when he was examined. He was at some distance. Wife of Dasrath was also working in tanr. He had seen Soma Oraon-accused fleeing away along with spade. He had heard that Soma Oraon had assaulted to Dasrath. His statement was also recorded by the Magistrate. In cross-examination, this witness says that from the agricultural field of Soma Oraon man was clearly visible. 19. P.W.7 Savitri Oraon is also hearsay witness. She stated that she came to know in regard to occurrence and also went along with her mother to agricultural field and also saw dead body of her father Dasrath Oraon. 20. P.W.8 Mini Oraon was the tender witness and stated that she did not reach to the place of occurrence. 7 21. P.W. 9 Lothe Oraon is the witness of inquest report. P.W. 10 Dasai Oraon is also witness of inquest report of deceased Dashrath Oraon. P.W. 11 Mangra Oraon is the witness of seizure of spade. P.W. 12 and 13 is Shivaji Prasad Singh. This witness in his examination-in-chief says that he had received investigation of this case from S.I. Shiv Kumar Singh and also filed charge-sheet. P.W. 14 is Shiv Kumar Singh I.O. This witness says in his examination-in-chief, the informant Suku Oraon along with Chowkidar Jatru Oraon had come and his fardbayan was recorded with the police station. F.I.R. of the same was prepared by constable Ram Kumar Singh. He verified the same and marked Ext.2. He also recorded the restatement of informant went to the place of occurrence and prepared site plan. There was one “Aal” in between the field of informant and accused Soma Oraon. Dead body of Dashrat Oraon was lying there. “Aal” was prepared thereon after having removed the clay from the agricultural field of deceased. At the time of occurrence it was raining. Blood was also washed away. Dead body was also sent for post-mortem. Spade was also seized on the pointing of wife of accused Soma Oraon and the witness also put his thumb impression on the seizure memo. Statement of witness Biren Oraon and Mahadeo also recorded under Section 164 Cr.P.C. by the Magistrate. 22. P.W. 15 Arun Kumar is Magistrate who told that he recorded the statement of Mahadeo Oraon and Biren Oraon. Statement under Section 164 Cr.P.C. of both the witnesses were marked as Ext. 5 & 6 respectively. 23. Learned Counsel for the applicant has submitted that the learned Trial Court had relied upon the testimony of P.W. 1 Biren Oraon and P.W. 2 Baria Oraon as the eye-witness of the occurrence; while both these witnesses were not the eye- witness of the occurrence. So far as P.W. 1 Biren Oraon is concerned her conduct at the place of occurrence was unnatural. She did not raise alarm and also did not tell in regard to the occurrence to anyone. So far as testimony of P.W. 2-Baria Oraon is concerned, she had not seen the occurrence rather had seen the accused fleeing away along with spade. So far testimony of other witness P.W.3 Suku Oraon and other witnesses are concerned, the same is hearsay witness. Conduct of P.W.2 Baria Oraon 8 was also unnatural at the place of occurrence. She did not come to rescue her husband. She also went to her house leaving the dead body at the agricultural field. This ocular evidence is also at variance with the medical evidence. This eye-witness stated that Soma Oraon had inflicted with spade which could have caused lacerated wound or fracture and not incised as shown in the post-mortem report. P.W. 5 Dr. Kant Kumar Kujur though opined that these injuries were caused by hard and blunt object but all the injuries being the incised wound could not have been caused with spade. Therefore, the testimony of the eye-witness is not corroborated with the medical evidence and learned Trial Court relying upon the testimony of eye-witness which was at variance with the medical evidence had given a perverse finding to come to the conclusion to hold the appellant guilty for the offence of murder and convicted and sentenced the appellant on the wrong appreciation of the evidence on record. 24. P.W. 1 Biren Oraon is the independent witness. This witness had narrated in her statement that at the time of occurrence she was working in the nearby field. Altercation was going on between the accused Soma Oraon and deceased Dashrath Oraon. Soma Oraon had assaulted Dashrath Oroan with spade and she had seen the occurrence from the agricultural field wherein she was working and the place of occurrence was also visible from there. I.O. got recorded her statement under Section 164 Cr.P.C. which was also proved by P.W. 15 Arun Kumar the Magistrate. Statement of this witness is in consonance with the statement under Section 161 and 164 Cr.P.C. given by this witness during investigation. Defence Counsel could not show any contradiction in the testimony of this witness given before the Trial Court and in her statement under Section 161 and 164 Cr.P.C. So far the conduct of this witness at the place of occurrence is concerned, same is not found unnatural as there was no need to raise alarm by her or to tell in regard to anyone. As the person who were working in the nearby agricultural field at the time of occurrence, had also been watching the occurrence. As such the conduct of this witness is not found unnatural. Testimony of this witness is found unblemished and also inspires confidence to believe the same. 9 25. So far as testimony of P.W. 2 Baria Oraon is concerned, she is illiterate witness. At the time of occurrence she was also plucking grass in the nearby agricultural field wherein the occurrence took place. This witness has stated that she heard “hulla” and saw the occurrence from the agricultural field wherein she was working. Soma Oraon pushed her husband on the ground and also assaulted with spade. She also raised alarm. Hearing her alarm, the persons who were working in the nearby agricultural field also attracted there. She also reached to the very agricultural field wherein her husband was assaulted by Soma Oraon who is the cousin brother of her husband. This witness also stated that dispute between the two took place on cutting the soil and to prepare “Aal” in the agricultural field which was of Soma Oraon-accused herein and her husband-Dasrath Oraon (deceased). So far as the distance from the place wherein she was working and the place of occurrence is concerned, she stated that it was at the distance of ‰ kosh; but on the basis of the same her whole testimony cannot be discarded and cannot be accepted to be tainted because this witness was illiterate and she stated that she does not know yard, k.m. and kosh. So far as the conduct of this witness leaving her husband at the place of occurrence and going to her house is concerned, same is also not unnatural in view of her statement given before the Court that she went to her house and told in regard to the occurrence to her family members who also came to the place of occurrence and saw the dead body of her husband. Therefore, the testimony of this eye-witness also inspires confidence to believe the same. The testimony of these two eye-witnesses is also corroborated with the testimony of P.W.3-Suku Oraon. Suku Oraon is the informant. This witness had also gone to respond the call of nature towards agricultural field. After having heard “hulla” of his daughter-in-law who was working in agricultural field, he also attracted there. He also reached there and saw the accused Soma Oraon fleeing away along with “Kudal”. His daughter-in-law told him that Soma Oraon had assaulted her husband Dasrath Oraon with spade resulting in death. He also saw the dead body of his son which was slit from the neck bearing several wounds. Therefore, 10 testimony of this witness P.W. 3 Suku Oraon is also admissible under Section 6 of the Evidence Act as Res Gestae evidence. 26.
Legal Reasoning
So far the contention of the learned Counsel for the applicant that the ocular evidence is at variance with the medical evidence as in post-mortem report all the ante mortem injuries were incised wound which could not have been caused by assault of “Kudal”. Therefore, the medical evidence being in consistent with the ocular evidence, the impugned judgment of conviction and sentence passed by the Trial Court on the basis of the eye-witness suffers infirmity. The appraisal of evidence on record on this point is hereunder- 27. On behalf of the prosecution P.W. 5 Dr. Kant Kumar Kujur has proved post-mortem report (Ext.1). This witness has stated that there were six ante-mortem injuries out of five were incised wound and all the incised wound were on the left side of the frontal bone on the neck below ear and this witness also opined that all the injuries were caused by hard and blunt substance may be “Kudal”. In the testimony of P.W.5 Dr. Kant Kumar Kujur injuries are deposed hereunder: i. Muddy on the face and all the limbs. ii. Incised wound left side of the frontal bone region 1” x ½” upto the bone just above about 1 ½“ left ear. iii. Incised wound 1 ½” x ½” upto bone. iv. Incised wound and perforating injury which start below the right ear and extent upto middle of the back of the neck 6” x 1 ½”x upto the vertebral cavical. v. Incised Injury 5”x 1 ½” x upto the vertebral cavical. vi. Incised injury 4”x1”x upto the vertebrae. vii. Abrasion on the left chest 1”x ½”. 28. The contention of the learned Counsel for the appellant that if the injuries are inflicted with spade would cause lacerated wound or stitch wound. Herein, it is necessary to reproduce text of page 452 of 11th Edition of Medical Jurisprudence & Toxicology written by Lyons which deals with lacerated wound. It is stated that split laceration is a type of laceration. In page 843 of the same book it is stated as follows:- “Laceration wounds are commoner on regions where unyielding bone closely underlies the surface. The tissues that are powerfully compressed between the bone and the instrument or the ground, as the case may be, give way along the line of 11 greatest pressure. The resulting wound may, to cursory inspection, present the appearance of an incised wound.” 29. HWV Cox in his book Medical Jurisprudence and Toxicology (seventh edition) also deals with lacerated wounds. It is stated that there are four types of lacerated wounds. The first is split laceration. In page 395 it is stated as follows:- “Split Laceration: Splitting occurs by crushing the skin between two hard objects. They are also called incised looking wounds. When there is application of blunt force on areas where the skin is closely applied to the bone and sub-cutaneous tissue is scanty, the wounds are produced by linear splitting of the skin. The common areas are scalp, eyebrows and hibones. They can be differentiated by examining magnifying glass and in these cases roots of hair are crushed.” 30. Chapter Five of the same book deals with Regional Injury. In page No. 423, it is stated as “A scalp wound by a blunt weapon may resemble an incised wound, hence the edges and ends of the wound must be carefully seen to make out a torn edge from a cut and also to distinguish a crushed hair bulb from one cut or torn.” 31. According to Modi’s Medical jurisprudence and Toxicology (22nd Edn.) the edge of a wound made by a heavy-cutting weapon, such as an axe, hatchet or shovel, may not be a smooth as those of a wound caused by a light-cutting weapon, such as a knife, razor etc. and may show signs of contusion. However, while dealing with an incised-looking wound, according to Modi, occasionally, on wounds produced by a blunt weapon or by a fall, the skin splits and may look like incised wounds when inflicted on tense structures covering the bones, such as the scalp, eyebrow etc.” 32. Therefore, in view of the text of Medical Jurisprudence the incised wounds which were ante-mortem on the dead body of deceased Dasrath Oraon are the incised wound which were caused by hard and blunt object. These injuries would look like incised wound to be caused by the infliction of the spade (Kudal) keeping in view tense structures covering bone wherein it were inflicted. 33. Dr. Kant Kumar Kujur P.W.5 who was examined on behalf of the prosecution, was not cross examined in regard to ante-mortem incised injury which were on the body of deceased Dasrath Oraon. It was opined by the Doctor to be caused by hard 12 and blunt object as explained hereinabove. The reason of incised wound was shown to be caused by hard and blunt object which may be “Kudal”. Therefore, the ocular evidence is not found at variance with the medical evidence in this case. 34. Hon’ble Apex Court in the case of “Kamaljit Singh vs. State of Punjab”, (2003) 12 SCC 155 held: “8. It is trite law that minor variations between medical evidence and ocular evidence do not take away the primacy of the latter. Unless medical evidence in its term goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by the eyewitnesses, the testimony of the eyewitnesses cannot be thrown out. When the acquittal by the trial court was found to be on the basis of unwarranted assumptions and manifestly erroneous appreciation of evidence by ignoring valuable and credible evidence resulting in serious and substantial miscarriage of justice, the High Court cannot in this case be found fault with for its well-merited interference.” 35. Learned Counsel for the applicant also contended that the motive and intention of the applicant-accused is not reflected from the testimony of the prosecution witnesses. As such charge as framed against the applicant is not proved beyond reasonable doubt. This contention of the learned Counsel for the applicant is not found sustainable because P.W. 2 Baria Oraon who is the wife of deceased says that the dispute arose on making “Aal” in the agricultural field which was objected by the accused when the deceased-Dasrath Oraon her husband was repairing “Aal” in the agricultural field. On this very issue, altercation took place and the accused Soma Oraon opposing the same assaulted to the deceased Dasrath Oraon with spade. Infliction of several blow on the vital part of the dead body of deceased which is evident from post-mortem report of deceased that there were five ante-mortem incised wound on the neck frontal region and vertebral cavical of deceased clearly reflected the intention of the applicant-accused to commit murder of deceased-Dasrath Oraon. 36. The Hon’ble Apex Court in “State of U.P. vs. Krishna Master and Ors.”, reported in AIR 2010 SC 3071 has held: “Para 8 …..These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of 13 occurrence and threat to the life. It is not unoften that improvements in earlier version are made at the trial in order to give a boost to the prosecution case albeit foolishly. Therefore, it is the duty of the Court to separate falsehood from the truth. In sifting the evidence, the Court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot be reasonably be carried out. In the light of these principles, this Court will have to determine whether the evidence of eye-witnesses examined in this case proves the prosecution case….” 37. The Hon’ble Apex Court in “Bhajan Singh @ Harbhajan Singh vrs. State of Haryana”, reported in A.I.R. 2011 S.C. 2552 has held: “Contradiction between medical and ocular evidence can be crystalized to the effect that though the ocular testimony of a witness has greater evidentiary value vis. a vis. medical evidence, when medical evidence makes the ocular testimony improbable,that becomes a relevant factor in the process of the evaluation of evidence. However, when the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.” 38. The Hon’ble Apex Court in “Sunil Kumar and Another vrs. State of Uttar Pradesh”, reported in (2010) 2 S.C.C. 1204 has held: “Motive in a criminal case is irrelevant where evidence of the eyewitness is available.” 39. Learned Counsel for the appellant also contended that recovery of “Kudal” on the pointing of wife of appellant-accused from his house is not established that this “Kudal” was also used in commission of murder of deceased Dasrath by the appellant- accused-Soma Oraon which was not sent to F.S.L. for examination and the same is fatal to prosecution case. Admittedly “Kudal” which was seized by the I.O. from the house of the appellant on the pointing of wife of accused was not sent to F.S.L. for chemical examination. In case of eye-witness account even recovery of the weapon used in commission of the murder is not material and same is not fatal to the prosecution case. 40. The Hon’ble Apex Court in case of “Yogesh Singh vrs. Mahabeer Singh & Ors., reported in A.I.R. 2016 S.C.5160 held that: “Mere non-recovery of weapon does not falsify prosecution case where there is ample unimpeachable ocular evidence.” 14 41. The Hon’ble Apex Court in case of “Surendra Paswan v. State of Jharkhand”, reported in (2003) 12 SCC 360 has held: “9. So far as the non-seizure of blood from the cot is concerned, the investigating officer has stated that he found blood stained earth at the place of occurrence and had seized it. Merely because it was not sent for chemical examination, it may be a defect in the investigation but does not corrode the evidentiary value of the eyewitness. The investigating officer did not find presence of blood on the cot. The trial court and the High Court have analysed this aspect. It has been found that after receiving the bullet injury the deceased leaned forward and whatever blood was profusing spilled over onto the earth.” 42. The testimony of these eye-witnesses P.W. 1 Biren Oraon, P.W. 2 Baria Oraon which is also corroborated with the Res Gestae evidence of P.W.3- Suku Oraon and also well corroborated with the statement of I.O. P.W.14 Sheo Kumar Singh. This witness has stated that he had recorded the statement of Biren Oraon- P.W.1 and her statement under Section 164 Cr.P.C. was also got recorded by the Magistrate. He also recorded the statement of P.W.2-Baria Oraon. P.W.3 informant- Suku Oraon. During cross-examination no contradiction could be drawn by the defence counsel. 43. As such from the overall appraisal of evidence and also in view of proposition of law laid down by Hon’ble Apex Court analysed above, we are of considered view that the impugned judgment and order of conviction needs no interference. 44. So far as sentence passed by the learned Trial Court is concerned, from the impugned order it is found that the learned Trial Court had sentenced the appellant- accused with rigorous imprisonment for life, and had not imposed fine which was mandatory in view of the punishment as provided under Section 302 of the I.P.C. This omission on the part of fine is being cured by this Appellate Court and the fine of Rs.20,000/- is also imposed to the convict/appellant along with rigorous life imprisonment awarded by the Trial Court. Up to this extent, sentence passed by the Trial Court stood modified. 45. Accordingly, this Criminal Appeal is hereby dismissed and the impugned judgment and order of conviction and sentence passed by the learned Trial Court is affirmed with modification imposing fine. 15 46. The appellant was on bail during the pendency of this appeal, his bail bond is hereby cancelled. The Trial Court is directed to ensure compliance by sending the appellant-accused to Jail and to secure recovery of fine. 47. 48. Let the record of the trial court be sent along with copy of the judgment. The Co-ordinate Division Bench of this Court vide order dated 02.05.2019 had appointed Amicus Curiae to learned Counsel Ms. Aparajita Bhardwaj. Therefore, let the Secretary, Jharkhand High Court Legal Services Committee be communicated in regard to the judgment in this Criminal Appeal, directing him to reimburse fee to learned Amicus Curiae on submission of bill(s) thereof. I agree (Sujit Narayan Prasad, J.) Sujit Narayan Prasad,J. Jharkhand High Court, Ranchi Dated the 17.01.2023 P.K.S./A.F.R. (Subhash Chand, J.)